On the final sitting day of the 43rd parliament, and in the dying days of the Gillard leadership, a new amendment to the Migration act was passed, changing the way companies will operate in the waters off Australia from 30 June 2014.
The catalyst for the change was a Federal Court case decided in 2012 – Allseas Construction vs Minister for Immigration and Citizenship.
The case was won by the Swiss-based company – seeing it prove the inconsistency of Australia’s Migration Act by demonstrating the migration zone, as defined by section five of the Act, does not extend to vessels that are not physically attached to the continental shelf or a resource installation.
In the Allseas case the court found there was no requirement for foreign workers to hold a visa as they would never be taken within Australia’s migration zone during their employment.
Workers without visas have been employed by the offshore oil and gas service industry to serve as the crew on ships since the 1980s, in what was a largely accepted practice.
As the workers would never set foot on Australian soil, it also afforded companies savings on wages as many crews are contracted from their country of residency.
Changes under the Migration Amendment (Offshore Resources Activity) Act 2013 have seen the definition of the migration zone altered.
By requiring everyone working on a vessel, such as a pipelay barge, to hold an Australian visa in order to work, it effectively takes away certain benefits enjoyed by companies in an exclusive economic zone.
While a new visa class will be implemented to assist the oil and gas industry, everyone previously covered will be required to apply for a visa.
The Amending Act gives the Australian Immigration Minister, Tony Burke, power under the Migration Act to make a determination to further define the term ‘offshore resources activity’.
The Act also provides that the new deeming provisions do not have the effect of extending Australia’s migration zone for other purposes or activities.
Aside from holding either a permanent or special visa, the changes will require companies to satisfy all local requirements of the Fair Work Act 2009 including awards pay agreements, National Employment Standards and enterprise bargaining agreements.
The Federal government has named national security and fair work protections as the reasoning behind the changes. According to the government, security checking is of critical importance in the offshore resources industry given the economical, strategic and environmental significance of the industry and the dangers associated with the handling of large quantities of pressurised flammable gas and oil.
The government also named the regulation of wages and conditions of workers as a priority, arguing it has no way of ensuring workers were not being exploited and cites that the jobs in question are Australian jobs, involved in the development of Australian assets.
In response to the Allseas case, the Federal government began the Migration Marine Taskforce to investigate any patterns of exploitation of workers in Australian waters; their recommendations formed the basis of the Amendment to the Migration Act and its implementation.
Opposition Senators Gary Humphries, Sue Boyce and Michaelia Cash fought the Amendment, arguing it was not necessary as no perceived ‘loophole’ existed in the first place to be closed. They stated the Allseas case confirmed a standing interpretation of Australian law in line with international law.
The Senators also voiced their concern that the Bill was not introduced as a measure of considered public policy, but introduced for ideological purposes, at the urging of the Maritime Workers Union who have been significant donors to the Labor Party over many years, to override the decision of the Federal Court in the Allseas case.
In a submission to the enquiry the Australian Institute of Marine and Power Engineers suggested a way to avoid “the enforcement nightmare and ensure comprehensive application of Australia’s migration laws to personnel on vessels engaged in offshore resources activity” was to simply delete references in the Migration Act from “in an area” to “Exclusive Economic Zone.”
Scott Barklamb from the Australian Mining and Metals Association who gave oral evidence at the enquiry said the Amendment was a significant change in Australia’s territorial obligations.
“The Exclusive Economic Zone is larger than our entire landmass. This Bill would expand Australia’s legal territory for the purposes of migration by 10 million square kilometres,” Mr Barklamb said. “The proposal to extend our federal laws, including the Fair Work Act, to this vast area does not amount to a mere tweaking or closing a loophole. It is a radical change that would more than double the reach of our Australian laws, and would do so in a manner unknown and inconsistent with our international legal obligations,” he said.
“Whether this is reach or overreach is a live point, and it is considerably enlivened, we say, by both the legal and regulatory concerns we raised.”
Another issue the Coalition felt was not explored was the government’s own admission it did not know how many workers were in the offshore maritime zone due to the standoff relationship shared by industry and government and the cost of uncertainty to offshore operators.
“A recent move by the Maritime Workers Union to demand cooks on North West Shelf gas projects receive wages of $230,000 a year is evidence of the outrageous wage demands on employers who are required
to rely on union labour,” the Coalition’s dissenting report read.
The passage of the Amendment was called hasty and negligent by Coalition Senators as it failed to properly consult with industry or properly calculate the bill’s impact to offshore operators.